Torts - Libel and Slander - Innuendo

8/16/2019 Torts - Libel and Slander - Innuendo

1/5

Marquete Law Review

V%&e 27Ie 1 December 1942

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Torts - Libel and Slander - Innuendo William Malloy

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2/5

THE

MARQUETTE LAW

REVIEW

injuries

and

results

therefrom

which would

not

have

occurred except

for the

negligence

of

a

responsible person,

would also,

in many

instances, work

injustice.

In the choice thus

presented between

two

interested

persons,

one breaching

the

law imposed

upon

him

of

exercising due

care,

and

the

other

being without fault,

the courts favor the

innocent party and lay the entire

responsibility

upon the one

breaching

his

legal

duty.

In

the

final

analysis,

the

determination

of

a case

involving the

question

of

foreseeability and intervening

cause must depend

upon

an appraisal

of the

total-

ity of

facts and

circumstances

in the individual

case,

and

the application

of the

rules

of

law to

the results of such

appraisal.

ANTHONY

FR NK

Torts-Libel and Slander-Innuendo.--Plaintiff

brought suit for libel

on

the

basis

of

articles appearing

in

the

newspaper

of

the

defendant

publisher.

In

commenting

editorially

on the

settlement of claims

of

the

county against

former officials for alleged

fraudulent land tax deals,

the

defendant charged

that

in the

past,

members of the highway

committee had made

money on

the sale

of

road

machinery

to the county.

In a subsequent

issue, the editor

qualified his

statement

by adding

that

the reference

was

not

to present com-

mittee

members

but

to those

of

many

years ago. Thereafter, plaintiff,

who

had

been a

committee

man

ten years previous

to the statement,

sent a letter

to the defendant requesting

an

express

retraction

if the charge did not refer

to him.

Defendant published plaintiff s

letter

in connection

with

an

editorial

stating

that if

the

plaintiff

had attended Christmas eve

services

in any of

the town

churches

he

would

have

gotten

a lot

of

good

out

of

it and felt

a

whole lot better.

Plaintiff alleged

that

by innuendo, defendant s

statement

accused him

of

such

a

general lack of Christian

virtue

as

to require his

attend-

ance

at

church

services.

Defendant demurred,

contending that

the

alleged

defamatory

statement

standing alone

without

the innuendo

did

not

in any

way injure the

plaintiff's

character or

subject him to ridicule

and

contempt;

and that no

innuendo

could

alter

the

sense

of

a

statement or supply a

meaning

not

obviously present. The

trial court overruled

the demurrer

and

defendant

appealed from

the order.

On appeal, held

order reversed.

No

innuendo

can alter

the

sense

of the

alleged

derogatory

statement,

or

supply a meaning which

is

not

there. The

court

must determine as

a matter

of

law

whether

the language complained of

is

capable of

the

meaning ascribed

to it by the

complaint. Luthey v

Kronschnabl

N.W.

2d) 799 (Wis.

1942).

There is a great

deal

of

diversity

of

opinion in various

jurisdictions

as

to

the role

which

innuendo

may play in libel

actions

where

the

defamatory

mean-

ing

of

the words

is

not

immediately

apparent.

A

comparison

of

the various

positions

adopted

by

courts can

best

be

made if

the

well

recognized distinction

between words

libellous per se

and

those libellous per quod is kept

in

mind.

In

the

former situation,

the

effect

of

the words

is

so direct

that damages

will

be

presumed by

the

court; while

in

the

latter,

no such

presumption

arises, and

if

the

plaintiff

is

to

succeed,

he

must

make

proof of

actual

damages.

The func-

tion

of innuendo differs

in

each case,

and the differences

are so great as to

necessitate

separate

examination.

When

the

theory of

the

plaintiff's action

is that

the words

were

defamatory

in

themselves,

a numerical majority

of

the courts will not

allow him

to assign

[Vol


3/5

RECENT DECISIONS

a

meaning

by innuendo.

Old Dearborn Distributing Co. v.

Seagram

Distilling

Corp.

88 Ill. App. 79,

N.E.

2d)

610 1937), Kassowitz v. Sentinel

277

N.W.

177 (Wis.

1936),

Ellsworth

v. Martindale-HubbellLaw Dictionary 268 N.W.

400

N.D. 1936).

In

other words, in these states

the

question is one of

the

normal

unstrained meaning

of the

words

employed.

A

strong

minority,

however, adopts

a freer interpretation of the phrase ordinary

meaning

of the words

an d

approaches

the

problem

of

a

derogatory

meaning

present

in

a statement

by

innuendo in

this

fashion:

if

the words

are ambiguous

and capable of

several

meanings,

one

of

which is actionable

in

se,

the

plaintiff

may plead

the

meaning

which he claims as

the

basis

of his cause of action.

These

courts look upon such

a

pleading, not

as an

extension

of the meaning

of a statement

or as

an aver-

ment

of

special damages because

of defamatory understanding,

but

as

the

statement of an

actionable

meaning

which while

not apparent,

was always

inherent

in

the statement.

Furr v.

Foulke 266

N.W.

687 S.D. 1936), Bradstreet

v.

Gill

72

Tex.

115, 9 S.W.

753

1888)

; Maas v. National Casualty

Co.

97 F.

2d) 247

C.C.A. 4th

1938 ; Washington Post

v.

Chaloner 250

U.S.

290,

39

Sup.

Ct.

448,

63

L.Ed.

987

1919).

Some

courts of

the majority which

refuse to allow an innuendo to

deter-

mine

the

meaning of an

ambiguous

statement

have

carried this

policy to the

extreme of throwing a

plaintiff

into a libel

per

quod action if

he averred any

extraneous facts surrounding the

publication

on which

he brought suit. Clarity

of

legal

thought

has

been sacrificed

for

example, when

a court which denied

the

ability

of

an

innuendo

to

change

the

natural

import

of

the words

was

faced

with the

following

situation:

an

actress brought suit

on

the

basis

of

a

picture

and article

which described

her as the

lady love of a famous comedian.

Without

showing

special

damages,

the

plaintiff

contended

that

the words

in

their

most innocent sense

becarme actionable in the

light of the

additional

fact

that

she was

a married woman.

In

an

opinion, two judges dissenting,

the

court

decided that the

plaintiff was

properly

allowed

to assert

the

fact of her marital

status, though neither the

majority or

minority

questioned

that

such was a

pleading by innuendo.

Sydney v. McFadden Newspaper Publications 242 N.Y.

208,

151 N.E.

209 1926). Likewise, several

southern

courts

by their

strict

adherence to

the letter

of

the majority

rule

have precipitated

themselves unneces-

sarily into a

discussion

of

innuendo

in libel in se

actions based on

articles

describing

a man as colored when

in

fact

he

was

white.

Upton v.

Times-

Democrat Pub.

Co.

104 La.

141,

28 So.

970

1900)

;

Flood

v. News and Courier

Co. 71 S.C. 112, 50 S.E.

637

1905).

These

courts

are apparently using

innuendo

in

its

widest

sense:

to

cover

every averment

which

is not

immediately

apparent from the statement

on

which

the

complaint

is

based,

whether

such averment

resolves

an

ambiguity

in meaning

or describes

the

circumstances

making the

statement

actionable.

Logic

would

seem

to be with

the

courts restricting the

use of

the term

innuendo

and the

prohibitions surrounding

its use

to pleadings

of

the former type.

When

the

term is

used

in a wider

sense

than this, courts

involve

themselves

in at least

an apparent contradiction

of the rule that the standard of interpretation of an

article

allegedly

defamatory

is

how those in

the

community

would reasonably

understand

the

statement. Facts attending

publication

but

extraneous to it can

give to

an apparently innocent

article a

nuance

of

meaning

which could

not

be

detected merely

from an

examination

of the words

used.

Hubbard

v.

Associated

Press 123 F. 2d) 864 C.C.A.

4th,

1941).

An entirely different

rule

applies to the pleading of innuendo

in actions on

the theory

of

libel

per quod. In

such cases innuendo is almost universally

94


4/5

THE

MARQUETTE

LAW REVIEW

admitted, and

the cases

seem

concerned with two questions-(l) the differences

between

libel

per

se and

per

quod,

and

(2)

the uses to which

innuuendo

can

be put to make

out

a case.

From

the standpoint of damages,

the

distinguishing

factor

between libel

in

se

and

per

quod seems to be

the

obviousness

and

directness

of

the damage done

to

the

plaintiff by the

statement. A

publication

is

not

of itself libellous unless

the language

as

a whole

in its

ordinary meaning naturally

and

proximately was

so

injurious to the plaintiff

that the court

will presume

without proof that his

credit

or

reputation

have been

thereby impaired. McAuliffe

v. Local Union

No.

3

IBEW, 29

N Y S (2d)

963

(1941),

following

O Connell

v. Press Publishing

Co. 214 N.Y.

352,

108 N.E.

556 (1915) ;

see

also

Ellsworth

v.

Martindale-Hubbell

Law Dictionary Co.

supra.

The

most stringent

application

of

the

above

rule is that

governing libel in se

actions

in Connecticut,

where in an early case,

a candidate

for

political

office

brought an action

against a person

who

accused

him

of

violating

the

election

laws

by

having

liquor bought

for

voters.

After

denying

the

ability

of

innuendo

to change the sense of

words not

actionable

in themselves

where no

special

damages

were shown,

the court stated:

To

be

actionable in se, the words

must

not

only impute to the plaintiff

a violation

of

a

penal or criminal

law,

but it

must

charge him with

a crime involving

moral turpitude

or

subjecting him to an

infamous

punishment.

Hoag v.

Hatch, 23 Conn. 585

(1855).

New

York,

on

the

other

hand,

is rather

lenient in

its view of

what

consti-

tutes

libel

in se. In a

case tried in

the federal

court under

New

York law,

the

defendant newspaper was

accused of

charging that

the

plaintiff

Congressman had

opposed

the

appointment to the

Federal

bench of

a named

individual

because

of

the latter's

religion

and foreign birth.

Defendant

contended

that

such a

charge

became actionable only

if special damages

could be shown,

and innuendo pleaded,

but

a

divided

court found

the

charge

libellous

in

se and laid

down

the follow-

ing as

New York

law:

1.

A false statement

need

not

charge a violation

of

any law to

be

actionable

in se.

2.

False statements which might

lead right

thinking

people

to

think

a

public

official less fit to hold

office

are

actionable in

se.

3.

The falsehood

need

not

make

even a

majority of

the readers think

less

of

the

person

defamed

in order

to be libellous in se. Sweeney

v.

Schenec-

tady Union

Publishing

Co. 122 F.

(2d)

288 (C.C.A.

2d,

1941).

When, however,

suit

is

brought

on

the

theory of

libel

per quod, the plaintiff

pleads that

the defamation

is actionable

because of

the

meaning

which was

conveyed to

the

readers and the

actual

provable losses which

he

suffered

thereby.

Special

significance

which

the words had because

of their reference

to

preceding

facts

and

exterior circumstances may

and

often

must

be alleged;

and often the

procedure followed

is

the

pleading of innuendo.

Ellsworth v.

Martindale-Hubbell

Latw Dictionary,

supra,

illustrates

pointedly

the

additional

burden of proof the

plaintiff must

bear when

the court decides

that

the words

are

not

libelous in

se.

In

the case last

mentioned,

the plaintiff's

attorney sued

the defendant pub-

lisher

because

of

blanks

following his name

in

defendant's

directory of

attorneys.

Plaintiff

alleged

that

the

possessors

of the

key to

the ratings

were given

an

untrue and defaming

picture

of his ability,

credit,

and

recommendations.

The

court

decided

that

the

blanks

were not libellous

in se,

and

hence

were not

actionable

unless

the plaintiff gave to them

by innuendo a

meaning which

they

did

not of themselves

possess.

Moreover, even if he did

so,

the

plaintiff assumed

[Vol. 7


5/5

RECENT

DECISIONS

the burden

of

proving not the tendency

of the words to cause damage but

of

proving

the actual

damages caused.

Furthermore

in a per

quod

action the

assigning of a defamatory

meaning

by innuendo

coupled

with proof

of

special damages

does not

lead

to recovery

in

all cases for damages

which were voluntarily

incurred

have

been

held to be

not

recoverable.

In

a

1941

case

Ohio

courts

refused

to

allow recovery when

the

article complained

of

fell

into

the

above category.

Plaintiff was a

minister and

the

sponsor of proposed amendments

to

the state

constitution. He

was

accused

by

the defendants of

being

a paid

lobbyist

and

he brought suit

alleging

that

the statement

by innuendo

accused

him

of being

connected

with a tax movement

opposed

to

the

best interests of

the people

and

of

being

a

person of ill repute

who

would

work

for any

interest

if

compensated according

to his

price.

As

items

of

special

damage

he

listed

the expenses incurred

by him in denying the

charges.

On

the

ground

that

the

items

were

voluntarily

incurred the

court

denied

recovery.

There is a

further division

of authority

on the

question

of

the

province

of

the court and

jury

in

a trial where

innuendo may be alleged.

The

principal

case

holds that it

is for

the

court to

determine

whether

the

innuendo on which

the

complaint is based

is

properly

ascribed

to

the statement. These are cases to the

contrary. Pollard

v. ForestLawn

Memorial

Park

Assn., 59

P.

2d)

203,

15

Cal.

App. 2d)

77,

1936); Lily v. Belk s

Department Store,

182 S.E.

889,

178 S.C.

278 1935);

Stampler

v. Richmond, 125 Pa.

Sup.

385,

189

A. 730

1937).

WLLI M

MALLOY.

94

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